Is the EU’s consultation process broken?

The challenge is on to improve public participation in EU lawmaking
Photo: Alamy

By Linda A Thompson

Linda A Thompson is a Belgian journalist who writes on EU policy and legal activism

05 Sep 2023

In October 2020, the European Coalition for Corporate Justice (ECCJ), together with a number of other civil society organisations, mounted a major awareness-raising campaign encouraging citizens to submit feedback on a law proposal by the European Commission – through a custom-built online consultation platform.  

The law in question was a landmark proposal aiming to hold large companies accountable for human rights and environmental abuses across their supply chains. At the end of the four-month campaign, 120,000 citizens had submitted their thoughts.  

The European Commission has had its own dedicated website where citizens, experts and special interest groups can submit feedback on legislative proposals since 2017, and receives about 80 submissions per consultation. But the average European Union citizen doesn’t visit the portal to look for public consultations, says Christopher Patz, a policy officer at the Brussels-based ECCJ.  

“This is part of a broader chronic problem of European lawmaking; that citizens are not well informed about the existence of certain proposals,” he tells The Parliament. “It’s our role to connect the citizens that are involved in our movement to those legislative proposal consultations, and vice versa. And we dedicate huge amounts of resources, time and funding to connect citizens to those Commission consultations – which, in our absence, citizens would likely not be contributing to.” 

So, when the Commission subsequently failed to recap the key messages of citizens’ responses in the factual summary report – a document highlighting the main issues raised in a public consultation – Patz and his colleagues weren’t happy.  

The civil society organisations behind the campaign, represented by Friends of the Earth Europe, took this and another related grievance to the authority in charge of investigating complaints regarding the poor administration of EU institutions or other bodies – ombudsman Emily O’Reilly.  

O’Reilly agreed that the citizens’ responses should have been summarised in the document. In her decision, she noted that the Commission’s handling of the campaign responses might discourage organisations from launching similar campaigns in the future, warning that this would be “detrimental to the capacity of public consultations to collect views from the public and to citizens’ involvement in the decision-making process”. 

Looking back, Patz says the Commission’s approach suggests a two-tier consultation system in which trade associations’ responses are given more weight than those of citizens. “Public consultations are one of the very few means that citizens have to engage in policymaking at the EU level,” he adds. “The impression given to citizens when their responses are not reported on quantitatively and substantively in the same way as trade groups is, why bother?”  

The EU consultative process is, however, viewed as top of the class. The Organisation for Economic Co-operation and Development (OECD) considers the EU’s approach to public consultations among the best in the world, and even critics acknowledge that the EU system is much more participative than anything carried out by its Member States, with more than 100 public consultations every year.  

For each law proposal it puts forward, the Commission is required by law to organise “broad consultations with parties concerned”, allowing anyone – citizens, but also businesses, NGOs, civil society organisations – to have their say at various stages of the policymaking process.  

At least, that’s the theory, says Alberto Alemanno, a professor of EU law at HEC, a business school in Paris, who has studied the EU public consultation process for the last 20 years and founded The Good Lobby, an organisation that seeks to help civil society organisations more effectively lobby European policymakers.  

“The Commission contents itself by saying everybody can come to us on paper, but it’s not happening,” he tells The Parliament.  

Alemanno was a pro bono adviser to the European Coalition for Corporate Justice between January and April of 2017. He says that 75 to 80 per cent of comments are submitted by industry associations. In addition to this overrepresentation of business groups, feedback submitted by industry groups tends to be data-heavy, technical and high-quality. “So, policymakers have a positive bias toward special-interest submissions because they’re much more useful,” he says. “The average citizen would not be able to embrace a language enabling them to convey their message to the Commission in a way which [fits] with the standard language these consultative processes and frameworks require.”  

The result of this inequality of access has deep consequences for EU lawmaking, he warns, as “the decisions taken by policymakers are disproportionately affected and influenced by those special interests”. 

It’s not the only imbalance. Although the EU’s independent external auditor describes the framework for public consultations as of a high standard, it says countries including Germany and Austria are overrepresented in the submissions. The European Court of Auditors also criticises the limited number of EU languages in which consultation questionnaires are available and highlights that the Commission needs to better publicise the consultations among ordinary citizens.  

Meanwhile, the Regulatory Scrutiny Board, the independent body that evaluates draft impact assessments of EU legislative proposals, cautioned in 2022 that the Commission doesn’t sufficiently pay attention to the “non-representativeness” of the feedback received as part of public consultations. 

Like Alemanno, Adriana Bunea, a professor of political science at the University of Bergen in Norway, believes the terminology used by the Commission in consultations could be simpler.  

“One way to improve the current system is to speak in a way that would allow citizens to meaningfully engage with the policymaking and provide useful feedback,” she says, noting that broader advertisement of public consultations would also increase the level and quality of citizen participation in public policymaking. In 2018, Bunea received a €1.5m from the European Research Council to research the effects of stakeholder consultations on executive policymaking. 

But on the whole, she says, the EU consultation process performs quite well, with citizens’ interests and policy preferences having “a fair chance of getting voiced, represented, and included in [European Commission] policymaking” at different stages of the legislative process. “The system is transparent and easy to access for citizens, especially when it comes to feedback,” she says.  

Bunea adds that citizens are ultimately only “one type of stakeholder” – albeit a fundamental one, she underlines – alongside other legitimate, affected parties such as “interest organisations representing different types of societal and economic interests”. 

When asked about the overrepresentation of special-interest submissions and policymakers’ possible bias toward special-interest submissions, a Commission spokesperson says that neither the identity of the author nor their mastery of policy-speak influences how the Commission treats comments.  

“Contributions are valued not for the language used but for their relevance,” the spokesperson tells The Parliament. “The main objective of consultations is to collect views, opinions, data and evidence provided by citizens and stakeholders to support quality legislation. All contributions are analysed, processed and taken into account, with those coming from the industry, businesses or individual citizens being treated on equal terms,” she says. “There is no weight given to particular stakeholder types.”  

EU institutions have nevertheless witnessed growing pressure to improve efforts to involve ordinary citizens in policymaking. In 2021, the Commission committed to more widely publicising public consultations, and making them “more focused, clearer and user-friendly” as part of its Better Regulation agenda.  

Citizens were polled during the 2021 to 2022 Conference on the Future of Europe and results show 90 per cent want their voices to be more effectively taken into account by EU policymakers. As a result, European Commission President Ursula von der Leyen announced in her 2022 state of the union address that, moving forward, the Commission would regularly organise citizens’ panels to consult people ahead of major draft laws.  

Three such panels have taken place so far in 2023: one on food waste, one on virtual worlds, and one on learning mobility. A Commission spokesperson tells The Parliament that the panels consist of 150 citizens randomly selected from the 27 EU Member States who reflect the EU’s diversity in terms of geographic origin, gender, age, socioeconomic background, and level of education, with a third of each panel consisting of people aged between 16 and 25.  

“Citizens’ panels reinforce the wider public consultation regular process performed in line with better regulation principles, through which the Commission collects views and evidence from citizens and other stakeholders,” she says. 

Whether these new panels will achieve their goals remains to be seen. Experts are warning that unless they are fully integrated into the EU’s current policymaking frameworks, they won’t.  

“This new generation of panels is important and welcome, but not a gamechanger for democracy,” says Richard Youngs, a senior fellow at the Carnegie Europe think tank. Pointing out that there have been many similar initiatives in the past, he says: “The EU plans add to these [previous ones] without a major qualitative jump forward. This is not a criticism of the commissioner’s team, who have been pushing participation often against the apathy of national governments.” 

Noting that some activists push for participative democracy to largely replace representative democracy, he says: “The more realistic agenda is to extend the use of the participative forums in a way that actually helps revive representative democracy.”  

But to achieve this, the citizens’ panels would need to be better plugged into existing representative processes. “They are not currently well embedded in this way,” he says. 

Alemanno sounds more hopeful. “These processes are very slow. But there is internal uptake and learning within the European Commission,” he says, adding that he had heard a chief of staff to several commissioners say that more and more directorate-generals were showing interest in the citizens’ panels. 

He points out that the output of the citizens’ panels would also be compiled in a special report, to be used throughout the entire legislative process. “This is very powerful,” he says. “Because in the past, the Parliament and the Council would look at the impact assessment and say: there’s a study saying this; there’s another study contradicting this. But, now, all of a sudden, they could say: look at what randomly selected citizens are saying.” 

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